Lawsuit Filed To Protect Foreign Students From ICE And USCIS

An immigrant is detained by Immigration and Customs Enforcement (ICE) during an operation on April 11, 2018, in New York City. (Photo by John Moore/Getty Images)

A new lawsuit has been filed that seeks to prevent U.S. Citizenship and Immigration Services (USCIS) from enforcing changes made to its website that could result in international students facing deportation and a 10-year bar from the United States.

As previously reported, in April 2018, USCIS changed its website without notice and appeared to prohibit international students in science, technology, engineering and mathematics (STEM) Optional Practical Training (OPT) from working at third-party locations. Shortly after, attorneys predicted someone was going to sue USCIS over this change. And that is exactly what has happened.

Immigration attorney Jonathan Wasden has filed the case of ITServe Alliance v. Nielsen in the U.S. District Court for the Northern District of Texas. Wasden was a trial attorney in the Office of Immigration Litigation at the U.S. Department of Justice and an attorney in the USCIS Administrative Appeals Office (AAO). I interviewed Wasden to understand the lawsuit and its potential impact on international students and employers.

Stuart Anderson: What is the objective of the lawsuit?

Jonathan Wasden: In what I can only compare to a scene out of 1984, USCIS changed its website that gives the details of the STEM OPT program. It inserted new “terms and conditions” that eliminated IT (information technology) consulting companies from STEM OPT. U.S. Citizenship and Immigration Services didn’t roll out these changes publicly. Instead, USCIS went in like Winston Smith, changed the webpage, and acted like it has always been that way.

Now the agency is seeking to penalize students whose STEM OPT was approved prior to the website change for failing to comply with rules they couldn’t know about. USCIS has sent out Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) threatening students with status violations, which would mean they could be barred from immigration benefits for 5 years (or potentially more). (Here is a redacted email of a denial.)

Anderson: What is your primary legal argument?

Wasden: There are two main issues: 1) Can the Department of Homeland Security (DHS) make these prohibitions without going through the formal rulemaking process in the Administrative Procedure Act (APA). And 2) Can DHS apply these new prohibitions retroactively and penalize students for not complying with rules that didn’t exist when the students received employment authorization.

Anderson: What other arguments do you think are important?

Wasden: There is a case in 2000 from the DC Circuit called Appalachian Power Company v. Environmental Protection Agency that I think was prescient in explaining how a federal agency could act in an unlawful manner in the modern era. Here’s an excerpt: “With the advent of the Internet, the agency does not need these official publications to ensure widespread circulation; it can inform those affected simply by posting its new guidance or memoranda or policy statement on its website. An agency operating in this way gains a large advantage. ‘It can issue or amend its real rules, i.e., its interpretative rules and policy statements, quickly and inexpensively without following any statutorily prescribed procedures.’ The agency may also think there is another advantage – immunizing its lawmaking from judicial review.” The court ruled against the Environmental Protection Agency.

Anderson: What are the next steps – and timing – in the lawsuit?

Wasden: We filed the complaint and the motion for preliminary injunction. Now we are waiting for the briefing to start. Hopefully we will get a decision on the injunction within two months. The case should conclude on the merits within six months.

Anderson: Do you think the USCIS action on STEM OPT and work on third-party sites is part of a pattern?

Wasden: Is the STEM OPT change a pattern? We don’t allege that it is part of a concerted plan, but if you plot some things out it is very strange.

Keep in mind that DHS is now saying that students on approved STEM OPT violated their status if they worked for a consulting company or had anyone other than “a bona fide employer” do a training plan. USICS is saying such individuals have unauthorized employment in F-1 status.

That would be terrible, since it could result in a 5-year bar from the U.S. or worse.

Let’s review some of the recent changes from the Department of Homeland Security: 1) DHS (USCIS) makes changes to STEM OPT via a website; 2) DHS changes how unlawful presence is calculated (starts from the date of violation of status not from the date of decision); and 3) DHS makes changes with a Requests for Evidence and Notice of Intent to Deny memo.

If the Department of Homeland Security can retroactively enforce these rules against STEM OPT students, it is very likely the students will have accrued over one year of unlawful presence before the students knew there was even a violation or issue. That would mean the students would be barred from the United States for 10 years – a crushing, life-changing penalty for individuals who did nothing wrong. That is not the type of policy any American should support.

I am the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related issues based in Arlington, Virginia. From August 2001 to January 2003, I served as Executive Associate Co...